Wrongful Death and Survival in Asbestos Cases

Decisions in our library in which the court ruled on wrongful death and survival actions: 760 cases, by state. Each line gives what the court held, in our words; the law differs from state to state and changes, so read the opinion and talk to a lawyer before relying on any of them.

California

• Kesner v. Superior Court and Haver (2016). Employers and premises owners that use asbestos owe a duty of ordinary care to prevent take-home exposure to asbestos carried on workers' bodies and clothing, but the duty extends only to members of the worker's household.
• Lopez v. Allied Packing & Supply Inc. (2016). Under California law an action is commenced when the original complaint is filed, and amending it (including to add wrongful death claims and new plaintiffs after the original plaintiff's death) does not restart the one-year limit on diversity removal under 28 U.S.C. § 1446(c)(1).
• Rondon v. Hennessy Industries, Inc. (1st Appellate District, 4th Division, 2016). A manufacturer of a product that releases asbestos dust from another maker's component may be liable if its intended use would inevitably expose the user to asbestos dust; the test is "inevitable use," not "exclusive use."
• Untermann v. D. Zelinsky & Sons, Inc. (1st Appellate District, 4th Division, 2016). A defendant can shift the burden on summary judgment by showing the plaintiff cannot identify asbestos-containing materials tied to the defendant's activities. The plaintiff then needs admissible evidence of exposure, and an expert opinion lacking foundation about the specific products may be excluded without abuse of discretion.
• Casey v. Dynalectric Company (1st Appellate District, 3rd Division, 2015). State industrial dust safety orders establish a duty to use reasonable care to avoid exposing others to significant levels of industrial dust, whether or not the defendant knew or should have known the dust contained asbestos.
• Fenicle v. Boise Cascade Company (2015). A state-law asbestos wrongful death claim does not raise a substantial federal question under Grable merely because a repealed federal statute might bear on a veil-piercing theory. The rule of unanimity does not apply to removal under § 1452, but a bankruptcy-related case may be remanded on broad equitable grounds.
• Hellam v. Crane Co. (1st Appellate District, 4th Division, 2015). Preverdict settlements are credited against economic damages by the Espinoza method regardless of the settling defendants' fault, while postverdict settlements are credited under the Torres method, and a settlement executed after the verdict is a postverdict settlement. A court need not reduce a judgment for uncertain future asbestos bankruptcy trust recoveries that have not been received.
• Melendrez v. Ameron International Corporation (2nd Appellate District, 4th Division, 2015). If employment substantially contributed to a disease, the disease is covered by workers' compensation even if a nonindustrial cause such as home exposure also contributed, so the exclusive remedy rule bars a tort suit against the employer for the whole injury.
• Quiroz v. BNSF Railway Company (2nd Appellate District, 4th Division, 2015). In asbestos litigation the plaintiff must first show threshold exposure to asbestos. A defendant can shift the burden on summary judgment by showing through factually devoid discovery responses that the plaintiff cannot prove exposure, and an expert opinion with no factual basis that the materials contained asbestos cannot create a triable issue.
• Soto v. BorgWarner Morse Tec Inc. (2nd Appellate District, 4th Division, 2015). A punitive damages award cannot stand without meaningful evidence of the defendant's financial condition, and revenue figures alone are not enough. A minor is 'dependent' under Code Civ. Proc. § 377.60(c) only if financially reliant on the decedent for the necessaries of life, not merely for niceties.
• Uribes v. BASF Catalysts, LLC (2015). A removing defendant must show by clear and convincing evidence that there is no possibility the plaintiff could prevail against the non-diverse defendant; a discovery response that appeared to disclaim damages did not establish abandonment of the claims where the operative complaint stated viable claims.
• Collin v. Calportland Company (3rd Appellate District, 2014). A plaintiff must show exposure to the specific defendant's asbestos-containing product, and a defendant can shift the burden on summary judgment with comprehensive discovery and factually devoid responses; the sophisticated user defense turns on what the class of users knew or should have known about the particular product's dangers.
• Ganoe v. Metalclad Insulation Corporation (2nd Appellate District, 3rd Division, 2014). A defendant does not shift the summary judgment burden merely by pointing to a witness's failure to recall its name or to factually devoid discovery responses that the plaintiff has since amended with specific facts; circumstantial evidence and expert opinion tying the defendant's work to the decedent's exposure can raise a triable issue on causation.
• Grande v. Borg-Warner Morse Tec, Inc. (2014). Under California law, a plaintiff may show exposure to a defendant's asbestos-containing product through circumstantial evidence that supports a reasonable inference of exposure. Punitive damages go to the trier of fact unless no reasonable jury could find clear and convincing proof of malice, fraud or oppression.
• Haver v. BNSF Railway Co. (2nd Appellate District, 5th Division, 2014). Following Campbell v. Ford Motor Co., a premises owner owes no duty of care to family members of workers who are secondarily exposed to asbestos off the premises, whether the worker was employed by the owner or by a contractor.
• Ward v. Goss-Jewett Co. OF Northern California (1st Appellate District, 3rd Division, 2014). A defendant served with a statement of damages is entitled to actual notice a reasonable period of time before default, not a fixed 30 days. A default judgment cannot exceed the amounts in the operative statement of damages.
• Willis v. Buffalo Pumps Inc. (2014). Under California law, a plaintiff must show exposure to the defendant's product and that it was a substantial factor in the aggregate dose causing disease; equivocal product-identification testimony and evidence of corporate knowledge of asbestos hazards create fact disputes that preclude summary judgment, including on punitive damages.
• Willis v. Buffalo Pumps Inc. (2014). Under California law, an asbestos plaintiff must show exposure to the defendant's product that was a substantial factor in the aggregate dose; conflicting evidence on whether defendant supplied the product creates a jury question. Punitive damages require clear and convincing evidence of malice, oppression or fraud by an officer, director or managing agent, which was lacking here.
• Jones v. John Crane, Inc. (2nd Appellate District, 7th Division, 2013). A federal dismissal with prejudice of a decedent's personal injury suit, and of his spouse's loss of consortium claim, is a final judgment on the merits. Under res judicata and collateral estoppel it bars the later survival and wrongful death claims by the estate, the spouse and the heirs, who are in privity with the decedent.
• Nelson v. Air and Liquid Systems Corp. (2013). Under California law, a plaintiff must present evidence of exposure to asbestos from the specific defendant's product; evidence supporting only conjecture that the decedent was near or used a defendant's asbestos-containing product is insufficient to survive summary judgment.
• Strickland v. Union Carbide Corp. (2nd Appellate District, 7th Division, 2013). Under Rutherford, a plaintiff shows causation by proving threshold exposure to the defendant's product and expert testimony that the product can cause the cancer and that cumulative asbestos exposure contributed to the disease. Testimony isolating the defendant's product alone is not required.
• Bankhead v. ArvinMeritor, Inc. (1st Appellate District, 4th Division, 2012). Punitive damages need not be measured against a defendant's net worth, and no 10 percent of net worth ceiling exists; a roughly 2.4-to-1 punitive-to-compensatory ratio for highly reprehensible conduct did not violate federal due process.
• Flores v. Kmart Corporation (2nd Appellate District, 5th Division, 2012). A bankruptcy reorganization plan's discharge cannot be enforced against a claimant at the demurrer stage unless the record shows the claimant received constitutionally adequate notice. Publication notice suffices only if the claimant's identity was not reasonably ascertainable or the claim was conjectural; otherwise actual notice is required.
• Haver v. BNSF Railroad Co. (2nd Appellate District, 5th Division, 2012). Collateral estoppel requires that the issue be identical to one actually litigated in the prior case; a prior judgment on locomotive-exposure allegations does not bar a later wrongful death claim based on different, non-locomotive asbestos exposures that were never raised or decided.
• O'neil v. Crane Co. (2012). A product manufacturer is not strictly liable or negligent for harm caused by another manufacturer's product or replacement parts used with its product, unless its own product contributed substantially to the harm or it participated substantially in creating a harmful combined use. Foreseeability alone does not create a duty to warn.
• Robinson v. Ssw, Inc. (1st Appellate District, 3rd Division, 2012). California Corporations Code section 2010 does not apply to dissolved foreign corporations, so the law of the state of incorporation governs how long a dissolved corporation can be sued; under Nebraska's five-year survival statute the suit was untimely.
• Belvedere v. GS Blodgett Corporation (2nd Appellate District, 5th Division, 2011). Under the asbestos statute of limitations, the limitations period runs separately against each wrongful death heir, so one heir's knowledge does not start the clock for the others. A Doe amendment relates back only if the plaintiff was genuinely ignorant of the defendant's identity or the facts of its liability.
• Hankins v. Asbestos Defendants (bhc) (1st Appellate District, 4th Division, 2010). Under Code of Civil Procedure section 377.60 and 377.61 the trial court determines the heirs' respective shares of a wrongful death award, and an appellant must show error with an adequate record; on an inadequate record the allocation was not shown to be erroneous.
• Reaser v. AW Chesterton Company (2nd Appellate District, 7th Division, 2010). In a large multi-defendant asbestos case, a moving defendant need not show that every defendant is subject to jurisdiction in the alternative forum, but where that is uncertain the action should be stayed rather than dismissed so the plaintiff can return to California if the other forum proves unavailable.
• Saller v. Crown Cork & Seal Company, Inc. (2nd Appellate District, 1st Division, 2010). The consumer expectations test for design defect applies to asbestos-containing pipe insulation, and a worker's testimony about his exposure can support giving the instruction. Strict liability failure to warn is distinct from negligent failure to warn, so a verdict on the negligence claim does not make omitting the strict liability instruction harmless.
• Teruel-Armstrong v. Borg-Warner Morsetec, Inc. (2nd Appellate District, 3rd Division, 2010). A court may impose an evidence sanction for a third-party deponent's failure to produce subpoenaed documents only if a discovery statute authorizes it or, under inherent authority, the misconduct is egregious. Neither was shown here.
• Cadlo v. Metalclad Insulation (1st Appellate District, 5th Division, 2008). A final judgment in the earlier personal injury action establishing that the defendant's products legally caused the plaintiff's mesothelioma bars the defendant from relitigating causation in the later wrongful death action, even with new evidence, absent unusual circumstances denying a full and fair opportunity to defend.
• Norris v. Crane Company (2nd Appellate District, 5th Division, 2008). Under Rutherford's substantial factor test, exposure to asbestos from a defendant's product that adds to the cumulative dose can support causation. The consumer expectations test may be used for a design defect claim based on asbestos-containing valve gaskets and packing.
• Ballenger v. Agco Corporation (2007). A defendant may remove under the federal officer removal statute, construed broadly in favor of removal, if it acted under a federal officer's direct and detailed control, has a colorable federal defense, and shows a causal nexus between the claims and acts done under federal direction. A retired admiral's declaration can satisfy the control showing without decades-old contracts.
• Brumley v. Fdcc California, Inc. (1st Appellate District, 1st Division, 2007). The relation-back doctrine applies to the five-year trial rule (section 583.310), so claims added by amendment that do not relate back to the original complaint are not dismissed for failure to reach trial within five years of the original filing. Wrongful death and loss of consortium claims by heirs, and a later-arising cancer claim, do not relate back.
• Cadlo v. Metalclad Insulation Corporation (1st Appellate District, 5th Division, 2007). When a trial court validly enters a judgment nunc pro tunc to a date before the plaintiff's death, that date decides whether Code of Civil Procedure section 377.34 bars pain-and-suffering and future economic damages. A verdict exceeding a plaintiff's section 998 offer is prima facie evidence the offer was reasonable.
• Boyle v. Certainteed Corporation (1st Appellate District, 4th Division, 2006). A local court's general order allowing expedited summary judgment in asbestos cases on 60 days' notice, supported only by an attorney certification, conflicts with Code of Civil Procedure section 437c (75 days' notice and supporting evidence) and is invalid.
• Hopkins v. Plant Insulation Company (2006). State courts keep concurrent jurisdiction over bankruptcy trustee fraudulent-transfer claims under 11 U.S.C. section 544(b), and a bankruptcy-related claim removed under section 1441 as well as section 1452 can still be remanded on equitable grounds under section 1452(b).
• Dekens v. Underwriters Laboratories Inc. (4th Appellate District, 3rd Division, 2003). Under the negligent undertaking (Good Samaritan) doctrine, liability requires that the defendant specifically undertook the task it is accused of performing negligently. U.L.'s testing and certification of appliances for fire, electrical and accident hazards did not include an undertaking to guarantee safety from asbestos-related disease.
• Ferris v. Gatke Corporation (1st Appellate District, 4th Division, 2003). Even assuming Sindell market share liability could apply to asbestos friction products, plaintiffs failed to supply its requisites, including proof of the defendant's share of the national market. A civil conspiracy claim requires that each defendant already owe the plaintiff an independent tort duty.
• McGonnell v. Kaiser Gypsum Co., Inc. (1st Appellate District, 4th Division, 2002). A defendant can shift the burden on summary judgment by showing through the plaintiff's deposition that he had no knowledge of exposure to its products, and the plaintiff must then produce non-speculative evidence of exposure to the defendant's asbestos-containing product; mere possibility and a conclusory expert opinion are not enough.
• Ehret v. Congoleum Corp. (2nd Appellate District, 4th Division, 2001). Under Code of Civil Procedure section 685.020(a), which continued prior practice, postjudgment interest runs from the original judgment on the verdict when an appellate decision only modifies the judgment rather than reversing it.
• Franklin v. Usx Corp. (1st Appellate District, 3rd Division, 2001). A corporation that buys a predecessor's assets for adequate cash consideration under an unambiguous, integrated agreement disclaiming liabilities is not liable as successor under assumption, de facto merger or mere continuation theories. The product line successor rule applies only to strict product liability claims, not to negligence or premises claims.
• Ashdown v. Ameron International Corp. (1st Appellate District, 3rd Division, 2000). A latent asbestos-disease claim accrues, for deciding whether the 1982 amendment to Labor Code section 3602 applies, when the employee was diagnosed or discovered the disease, not at first exposure. The pre-1982 dual capacity exception therefore did not apply, and the fraudulent concealment exception requires the employer's actual knowledge of the injury.
• Wilson v. John Crane, Inc. (1st Appellate District, 4th Division, 2000). Civil Code section 1431.2 (Proposition 51) applies to strict products liability claims, so a defendant's liability for noneconomic damages is several only and proportional to its fault. Settlement sums allocated to loss of consortium and potential wrongful death claims are not credited against a personal injury judgment.
• Chevron USA, Inc. v. Wcab (1999). A partial dependency death benefit under Labor Code section 4702(a)(4) is based on the amount the decedent was devoting to the dependent's support at the time of injury, from any source of income. It is not limited to income lost at death or to earnings from employment.
• Ehret v. Congoleum Corp. (2nd Appellate District, 4th Division, 1999). Under Proposition 51, a settlement that does not separate economic from noneconomic damages must be apportioned so that only the economic share is set off against a nonsettling defendant. A plaintiff who wants a different allocation must offer evidence of the settlement terms and timing showing good faith; without that evidence, the Espinoza percentage formula applies.
• Gatton v. AP Green Services, Inc. (1st Appellate District, 2nd Division, 1998). Deposition testimony from another action cannot be treated as an affidavit to avoid the former-testimony hearsay requirements of Evidence Code section 1292 (witness unavailability and a similar interest and motive); Williams v. Saga Enterprises was rejected on this point.
• Hansen v. Owens-Corning Fiberglas Corp. (1st Appellate District, 2nd Division, 1996). A forum non conveniens stay does not require the moving defendant to show that every one of many defendants is subject to jurisdiction in the alternative forum. A stay lets the plaintiffs test that in the alternative forum and return if it fails, and a plaintiff's choice of forum can be overcome when private and public interests strongly favor the other state.
• Kellogg v. Asbestos Corp. Ltd. (1st Appellate District, 4th Division, 1996). When a plaintiff dies after submission of a bench trial but before final judgment, the court may still render judgment under CCP section 669, but under former Probate Code section 573(c) the judgment cannot include damages for pain and suffering. A defendant who seeks to reduce its share under Proposition 51 bears the burden of proving others' fault.